|Adoption and Children Bill
Mr. Djanogly: I concur with the opinions of my hon. Friends the Members for East Worthing and Shoreham and for North-West Norfolk. The clause is imprecisely drafted. The scope for a lawyer to argue about what it means is immense, and tightening it could save much time in the courts. I support the periods set out in the amendments.
I have some further concerns. For the clause to kick into play, proceedings for an adoption order or placement order must take place. In the early stages, a child may have been on the adoption register for about six months. If that child is mature and wants to be adopted, he may not like the fact that he has been left on the register. He may feel that the local authority is not doing what it should to ensure his adoption. If an authority has not done what it should, how can children ensure that a judge insists on drawing up a timetable and instructing the authority to do x or y? Such provision seems to be missing. It may appear in a different guise elsewhere in the Bill. Will the Minister elaborate?
Similarly, it is correct to mention the position of prospective adoptive parents. If they have been approved, they may feel that they have not been given access to a child whom they believe to be suitable, or that the pre-placement order process is not being pursued speedily. What remedies would they have to speed up the process?
These are more general issues around the specifics of the clause. The way in which the clause deals with the orders when people are already in court needs to be tightened up, but needs to be expanded to deal with the situation in which people want to go to court but cannot get off the starting blocks.
Ms Winterton: I echo the comments of Opposition Members that the clause is important. A major aim of the Bill is to reduce delay, and the court process plays an important part in that. I assure the hon. Member for North-West Norfolk that I will consider the Law Society's comments on case management rules.
We want to improve the court process and reduce unnecessary delays in adoption. That is why we specifically included in clause 1(3) an obligation on courts and adoption agencies to bear in mind that, in general, any delay in reaching a decision about the adoption of a child is likely to prejudice the child's welfare. If a court needs to consider a placement or adoption order, it will be obliged to draw up a timetable and give any necessary directions to ensure that it is adhered to. The clause will ensure that the courts maintain a tighter control on adoption and placement orders and do not allow drift, to which hon. Members have referred. The Bill will also give a power for rules of court to set out the time scales in which certain processes should take place.
Amendment No. 141 would require the court to draw up a timetable to dispose of any application in which an adoption or placement order needs to be made without delay, which is where Opposition Members may want to speed up the process. I appreciate the spirit of the amendments and can see why hon. Members are concerned to ensure that the court process lives up to the expectations in other clauses that it will be speedy. However, there are problems with the amendments. I will run through them and hope that hon. Members will accept that.
First, there is a technical problem. Amendment No. 141 refers in proposed subsection (1)(a) to the requirement of a court to draw up a timetable for the disposing of an application, yet no such application is referred to in subsection (1). In addition, the amendment is more limited in its effect than the Bill as currently drafted. For example, the Bill requires the court to fix a timetable in any proceedings in which a question may arise as to whether a placement or adoption order may be made or in any other question with respect to such an order. That means that a timetable must be set not only in relation to disposing of an application, but in relation to all the interlocutory stages that lead up to a final hearing. On that basis, the Bill is stricter on the steps that need to be taken to minimise delay.
Amendment No. 152 would require the court to draw up a timetable in any proceedings in which a placement or adoption order may be made within 28 days. The drafting is rather unclear and it could be read as requiring the court to determine whether an adoption or placement order should be made within 28 days. That is impractical.
Amendment Nos. 153 and 154 require court rules to prescribe periods within which prescribed steps must be taken. The Bill states that court rules may prescribe such periods. Amendment No. 154 requires prescribed steps to be taken within 60 days, and the current adoption rules usually require steps to be taken as soon as is practical. Amendment No. 155 is consequential, compensating for the proposed deletion of ''may'' in amendment No. 153, so that courts may make other provisions in addition to prescribing time scales.
The problem with the amendments is that they highlight the danger of trying to take a prescriptive approach to tackling delay through primary legislation. We intend to consider the appropriate prescribed periods when we come to the preparation of the new rules. We need to look very carefully at what lessons may be learned from the Children Act and the family proceedings rules.
Mr. Bellingham: On the point that my hon. Friend the Member for East Worthing and Shoreham made about the phraseology ''is intended'', will it be possible, once the Minister has consulted on the terms of the Children Act and looked again at the very points that she has just mentioned, to change the explanatory notes? I would be much happier if the notes said ''will avoid delay'' rather than ''is intended'', which is a little vague.
Ms Winterton: The difficulty is that it is important to ensure that, although we want to avoid delay, we must not do so at the expense of the child. It might be pushing it too far to say ''will'' because every case is different. That is one problem with such amendments, as I am sure the hon. Gentleman knows given his eight years' experience at the Bar working in family law. It is important not to be too prescriptive.
Mr. Llwyd: It is helpful to reflect on the way in which the Children Act 1989 unfolded. It gave an impetus to speed matters up by rules of court. The Parliamentary Secretary has responded to the hon. Member for North-West Norfolk about the Law Society, but will she take note of what the Family Law Bar Association and the Solicitors Family Law Association say about the rules? That is not to cut the lawyers in, but to ensure that the provisions are based on sound experience of the Children Act 1989.
Ms Winterton: Of course. I understand hon. Members' reservations about leaving matters to court rules or regulations, but there are good reasons for not deciding here how those rules should be drawn up. We want to build on the experience of others.
Mr. Brazier: To reinforce the point of the hon. Member for Meirionnydd Nant Conwy, when considering the lengthy Family Law Bill, I consistently noticed a contrast between the evidence of the Solicitors Family Law Association, which seemed to reflect the best interest of the families, and that of the Law Society, which seemed to be based on maximisation of lawyers' earnings.
Ms Winterton: I had better leave hon. Members to fight that one out.
Amendment No. 152 would require a timetable to be set within 28 days. In some cases, it would be set more quickly, so the amendment would not necessarily reduce delay. We must recognise that a timetable might not best further the welfare of individual children: it might need to be amended to take account of a change in the position on consent, for example. The amendment could cause difficulties in that regard. I am also concerned that it might require the court to determine whether an adoption or placement order should be made within 28 days, which is rather impractical.
The court must have enough time to ensure that it has all the requisite information to determine that the proposed course is in the best interests of the child. That includes the preparation of a schedule 2 report, which details the background to the adoption, the needs of the child and the circumstances of prospective adopters. The general thrust is rightly to reduce delay as much as possible, but we should not force proceedings to go too fast, which might not be in the best interests of the child.
Amendment No. 154, which would require prescribed steps to be commenced within 60 days, raises a similar problem. It proposes a slower process than current practice. Family proceedings rules allow respondents only 14 days to respond to an application. Requiring a step to be commenced will not necessarily reduce delay if the step is not completed within a reasonable time.
Although we want to reduce delays in court processes and we understand the spirit of the amendments, it is better to set out timetables after full consultation. We should also build on the experience of other jurisdictions when introducing rules. I hope that I have given Opposition Members some reassurance about the Government's intentions, and that the hon. Member for East Worthing and Shoreham will withdraw the amendment.
Tim Loughton: I am most grateful to the Minister for dealing at length with our probing amendments, which sought to define delay. She said that she appreciated the spirit of them and is mindful of the need to avoid delay; no doubt that approach would apply to the regulations and directions of her Department. I believe that we agree on what we are trying to achieve. I anticipated that she would draw attention to flaws in our proposals and, on that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Brazier: I beg to move amendment No. 137, in page 54, line 17, at end addó
The amendment is much more modest than previous ones. It is designed to achieve a similar objective but over a longer time. I should declare a former interest, in that I used to work as a statistician in an economic research department.
The Department has gathered many statistics about adoption and children's services. That is thoroughly welcome; it should not be timid about doing so. The testimony from the lawyers who assisted us with the amendments is that many delays in the court system are outside the direct control of the court. There are two main sources of delay: matters in the courtroom that are under the control of the judge or over which he has influence; and other activities, such as the making of reports and assessments, which happen outside the courtroom and over which the judge has little direct control or influence. I do not wish to take a view either way.
The argument for this modest little amendment is that collection of the statistics that I propose would produce three benefits. We would be able to test whether the lawyers are right that the bulk of the delay is, in fact, on the periphery of the court rather than in it; that would be interesting. Incidentally, to correct the record, I was supporting the remarks of the hon. Member for Meirionnydd Nant Conwy on consulting lawyers, not challenging them.
|©Parliamentary copyright 2001||Prepared 4 December 2001|